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As filed with the Securities and Exchange Commission on June 27, 1996
Registration No. 333-______
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
PACIFIC GREYSTONE CORPORATION
(Exact name of registrant as specified in its charter)
___________________
Delaware 95-4337490
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6767 Forest Lawn Drive, Suite 300, Los Angeles, California 90068
(Address of principal executive offices)
PACIFIC GREYSTONE CORPORATION 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
______________
ROBERT W. GARCIN, ESQ.
PACIFIC GREYSTONE CORPORATION
6767 Forest Lawn Drive, Suite 300
Los Angeles, California 90068
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service: (213) 436-6300
___________________
Copy to:
Richard A. Boehmer, Esq.
O'Melveny & Myers LLP
400 South Hope Street, Suite 1500
Los Angeles, California 90071
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
- --------------------------------------------------------------------------------
Common Stock, $.01 50,000(1) $11.6875(2) $584,375.00(2) $201.51(2)
par value shares
- --------------------------------------------------------------------------------
(1) This Registration Statement covers, in addition to the number of shares
of Common Stock stated above, options and other rights to purchase or
acquire the shares of Common Stock covered by the Prospectus and,
pursuant to Rule 416, an additional indeterminate number of shares which
by reason of certain events specified in the Plan may become subject to
the Plan.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in
the aggregate, and the registration fee were calculated based upon the
average of the high and low prices of the Common Stock on June 25, 1996
as reported on the New York Stock Exchange and published in the Western
Edition of the Wall Street Journal.
===============================================================================
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Securities and Exchange Commission Rule 428(b)(1).
Such documents need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. These documents, which include
the statement of availability required by Item 2 of Form S-8, and the
documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Form S-8 (Part II hereof), taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Pacific Greystone Corporation (the
"Company") filed with the Securities and Exchange Commission are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the period ending
March 31, 1996; and
(c) The description of the Company's Common Stock contained in its Form
8-A dated June 20, 1996 and any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior
to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, are deemed to be incorporated by reference into the
prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document, all or a portion of which
is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
amended, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware law provides for the indemnification of officers and
directors in terms sufficiently broad to include indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933. Pursuant to Section 145
of the Delaware General Corporation Law, a corporation may indemnify an
officer or director if that person acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to criminal actions or proceedings, had no
reason to believe the conduct was unlawful.
The Company has adopted provisions in its Bylaws which limit the
liability of its directors and officers to the fullest extent permitted by
Delaware law. The Company will indemnify its directors and officers for
claims against them arising out of their duties as directors or officers of
the Company. Such indemnification includes any judgments, fines and amounts
paid in settlement actually or reasonably incurred by a director or officer,
provided such director or officer acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Company. The Company may also advance expenses (including attorneys' fees)
to its directors and officers relating to such claims. The Company has
purchased and maintains insurance covering any liabilities asserted against
and incurred by its directors and officers acting in such capacities, whether
or not the Company would have the power or obligation to indemnify such
directors or officers under its Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or
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in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Los Angeles, State of California,
on this 25th day of June, 1996.
PACIFIC GREYSTONE CORPORATION
By: /S/ JACK R. HARTER
-------------------------------------
Jack R. Harter
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ JACK R. HARTER Chairman, President and June 25, 1996
- --------------------------- Chief Executive Officer
Jack R. Harter (Principal Executive Officer)
/s/ ANTONIO B. MON Vice Chairman and Chief June 25, 1996
- --------------------------- Financial Officer
Antonio B. Mon (Principal Financial
Officer)
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/S/ BRUCE E. GROSS Vice President and June 25, 1996
- --------------------------- Controller (Principal
Bruce E. Gross Accounting Officer)
/s/ SIDNEY LAPIDUS Director June 25, 1996
- ---------------------------
Sidney Lapidus
/s/ REUBEN S. LEIBOWITZ Director June 25, 1996
- ---------------------------
Reuben S. Leibowitz
/s/ JOHN D. SANTOLERI Director June 25, 1996
- ---------------------------
John D. Santoleri
/s/ DAVID KAPLAN Director June 25, 1996
- ---------------------------
David Kaplan
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EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4 Pacific Greystone Corporation 1996
Employee Stock Purchase Plan
5. Opinion of O'Melveny & Myers LLP
(opinion re legality).
23.1 Consent of Independent Public
Accountants.
23.2 Consent of Counsel (included in
Exhibit 5).
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EXHIBIT 4
PACIFIC GREYSTONE CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1996 Employee Stock
Purchase Plan of Pacific Greystone Corporation.
1. PURPOSE. The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase
Common Stock of the Company. It is the intention of the Company to have the
Plan qualify as an "Employee Stock Purchase Plan" under Section 423 of the
Internal Revenue Code of 1986, as amended. The provisions of the Plan shall,
accordingly, be construed so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.
2. DEFINITIONS.
(a) "BOARD" shall mean the Board of Directors of the Company.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "COMMON STOCK" shall mean the Common Stock of the Company.
(d) "COMPANY" shall mean Pacific Greystone Corporation, a
Delaware corporation.
(e) "COMPENSATION" shall mean all regular straight time gross
earnings, payments for overtime, shift premium, incentive compensation,
incentive payments, bonuses, commissions and other cash compensation.
(f) "CONTINUOUS STATUS AS AN EMPLOYEE" shall mean the absence
of any interruption or termination of service as an Employee. Continuous
Status as an Employee shall not be considered interrupted in the case of a
leave of absence agreed to in writing by the Company, provided that such
leave is for a period of not more than 90 days or reemployment upon the
expiration of such leave is guaranteed by contract or statute.
(g) "CONTRIBUTIONS" shall mean all amounts credited to the
account of a participant pursuant to the Plan.
(h) "DESIGNATED SUBSIDIARIES" shall mean the Subsidiaries which
have been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan (including any Subsidiaries which have been
so designated after the date the Plan is approved by stockholders).
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(i) "EMPLOYEE" shall mean any person, including an officer, who
is customarily employed for at least twenty (20) hours per week and more than
five (5) months in a calendar year by the Company or one of its Designated
Subsidiaries.
(j) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
(k) "EXERCISE DATE" shall mean the last day of each Offering
Period of the Plan.
(l) "OFFERING DATE" shall mean the first business day of each
Offering Period of the Plan, except that in the case of an individual who
becomes an eligible Employee after the first business day of an Offering Period
but prior to the first business day of the three months of such Offering Period,
the term "Offering Date" shall mean the first business day of the calendar
quarter coinciding with or next succeeding the day on which that individual
becomes an eligible Employee.
Options granted after the first business day of an Offering
Period will be subject to the same terms as the options granted on the first
business day of such Offering Period except that they will have a different
grant date (thus, potentially, a different exercise price) and, because they
expire at the same time as the options granted on the first business day of such
Offering Period, a shorter term.
(m) "OFFERING PERIOD" shall mean a period of six (6) months,
subject to Section 4.
(n) "PLAN" shall mean this Employee Stock Purchase Plan.
(o) "SUBSIDIARY" shall mean any corporation, domestic or
foreign, in an unbroken line of corporations (beginning with the Company) in
which each corporation (other than the last corporation) has stock possessing
50% or more of the total combined voting power of all classes of stock in one or
more of the other corporations in the chain, whether or not such corporation now
exists or is hereafter organized or acquired by the Company or a Subsidiary.
3. ELIGIBILITY.
(a) Any person who has been employed as an Employee for three
(3) months as of the Offering Date of a given Offering Period (except for the
first Offering Period under the Plan, in which case the person shall be an
Employee as of the Offering Date) shall be eligible to participate during such
Offering Period under the Plan, provided that such person was not eligible to
participate in such Offering Period as of any prior Offering Date, and further,
subject to the requirements of Section 5(a) and the limitations imposed by
Section 423(b) of the Code.
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(b) Any provisions of the Plan to the contrary notwithstanding,
no Employee shall be granted an option under the Plan (i) if, immediately after
the grant, such Employee (after applying the attribution rules contained in
Section 424(d) of the Code) would own stock and/or hold outstanding options to
purchase stock possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the Company or of any Subsidiary, or
(ii) if such option would permit his or her rights to purchase stock under all
employee stock purchase plans (described in Section 423 of the Code) of the
Company and its Subsidiaries to accrue at a rate which exceeds Twenty Five
Thousand Dollars ($25,000) of fair market value of such stock (determined at the
time such option is granted) for each calendar year in which such option is
outstanding at any time. For this purpose, a right to purchase stock occurs
when it first becomes exercisable during the calendar year.
4. OFFERING PERIODS. The Plan shall be implemented by a series of
Offering Periods, with new Offering Periods commencing on or about January 1 and
July 1 of each year (or at such other time or times as may be determined by the
Board of Directors). The first Offering Period shall commence on July 1, 1996
(or such other date as the Board of Directors shall determine). The Plan shall
continue until terminated in accordance with Sections 19 or 23 hereof. The
Board of Directors of the Company shall have the power to change the duration
and/or the frequency of Offering Periods with respect to future offerings
without stockholder approval if such change is announced at least ten (10) days
prior to the scheduled beginning of the first Offering Period to be affected.
5. PARTICIPATION.
(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement on the form provided by the Company and
filing it with the Company's payroll office prior to the applicable Offering
Date, unless a later time for filing the subscription agreement is set by the
Board for all eligible Employees with respect to a given Offering Period. The
subscription agreement shall set forth the percentage of the participant's
Compensation (which shall be not less than 1% and not more than 10%) to be
applied as Contributions pursuant to the Plan.
(b) Payroll deductions shall commence on the first payroll
following the Offering Date and shall end on the last payroll paid on or prior
to the Exercise Date of the Offering Period to which the subscription agreement
is applicable, unless sooner terminated by the participant as provided in
Section 10.
6. METHOD OF PAYMENT OF CONTRIBUTIONS.
(a) The participant shall elect to have payroll deductions made
on each payday during the Offering Period in an amount not less than one percent
(1%) and not more than ten percent (10%) of such participant's Compensation on
each such
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payday; provided that the aggregate of such payroll deductions during the
Offering Period shall not exceed ten percent (10%) of the participant's
aggregate Compensation during said Offering Period. The Company will
maintain on its books or cause to be maintained by a recordkeeper an account
in the name of such participant. All payroll deductions made by a
participant shall be credited to his or her account under the Plan. A
participant may not make any additional payments into such account.
(b) A participant may discontinue his or her participation in
the Plan as provided in Section 10, or, on one occasion only during the Offering
Period, may decrease the rate of his or her Contributions during the Offering
Period by completing and filing with the Company a new subscription agreement.
The change in rate shall be effective as of the beginning of the calendar
quarter following the date of filing of the new subscription agreement.
(c) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 3(b) herein, a
participant's payroll deductions may be decreased to 0% at such time during any
Offering Period which is scheduled to end during the current calendar year that
the aggregate of all payroll deductions accumulated with respect to such
Offering Period and any other Offering Period ending within the same calendar
year equal $21,250. Payroll deductions shall re-commence at the rate provided
in such participant's subscription agreement at the beginning of the first
Offering Period which is scheduled to end in the following calendar year, unless
terminated by the participant as provided in Section 10.
7. GRANT OF OPTION.
(a) On the Offering Date of each Offering Period, each eligible
Employee participating in such Offering Period shall be granted an option to
purchase on the Exercise Date a number of shares of the Company's Common Stock
determined by dividing such Employee's Contributions accumulated prior to such
Exercise Date and retained in the participant's account as of the Exercise Date
by the lower of (i) ninety-five percent (95%) of the fair market value of a
share of the Company's Common Stock on the Offering Date, or (ii) ninety-five
percent (95%) of the fair market value of a share of the Company's Common Stock
on the Exercise Date; PROVIDED, HOWEVER, that the maximum number of shares an
Employee may purchase during each Offering Period shall be determined at the
Offering Date by dividing $12,500 by the fair market value of a share of the
Company's Common Stock on the Offering Date, and provided further that such
purchase shall be subject to the limitations set forth in Sections 3(b) and 12.
The fair market value of a share of the Company's Common Stock shall be
determined as provided in Section 7(b).
(b) The option price per share of the shares offered in a given
Offering Period shall be the lower of: (i) 95% of the fair market value of a
share of the Common Stock of the Company on the Offering Date; or (ii) 95% of
the fair market value of a share of the Common Stock of the Company on the
Exercise Date.
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The fair market value of the Company's Common Stock on a given date shall be
the closing price on The New York Stock Exchange on such date (or, in the
event that the Common Stock is not traded on such date, on the immediately
preceding trading date), as reported in THE WALL STREET JOURNAL or, in the
event the Common Stock is not listed on The New York Stock Exchange, the fair
market value shall be the closing price of the Common Stock for such date
(or, in the event that the Common Stock is not traded on such date, on the
immediately preceding trading date), as reported by the National Association
of Securities Dealers Automated Quotation ("Nasdaq") or, if such price is not
reported, the mean of the bid and asked prices per share of the Common Stock
as reported by Nasdaq or, if such prices are not so reported, as determined
by the Board in its discretion.
8. EXERCISE OF OPTION. Unless a participant withdraws from the Plan
as provided in paragraph 10, his or her option for the purchase of shares will
be exercised automatically on the Exercise Date of the Offering Period, without
any further action on the optionee's part, and the maximum number of full shares
subject to option will be purchased at the applicable option price with the
accumulated Contributions in his or her account. The shares purchased upon
exercise of an option hereunder shall be deemed to be transferred to the
participant on the Exercise Date. During his or her lifetime, a participant's
option to purchase shares hereunder is exercisable only by him or her.
9. DELIVERY. As promptly as practicable after the Exercise Date of
each Offering Period, the Company shall arrange the delivery to each
participant, as appropriate, of a certificate representing the shares purchased
upon exercise of his or her option. Only cash remaining to the credit of a
participant's account under the Plan after a purchase by him or her of shares at
the termination of each Offering Period which is insufficient to purchase a
whole share of Common Stock of the Company shall be carried over in the
participant's account and applied to the option price for the succeeding
Offering Period.
10. WITHDRAWAL; TERMINATION OF EMPLOYMENT; REDUCTION IN SERVICE.
(a) A participant may withdraw all but not less than all the
Contributions credited to his or her account under the Plan at any time prior to
ten (10) days prior to the Exercise Date of the Offering Period by giving
written notice to the Company. All of the participant's Contributions credited
to his or her account will be paid to him or her promptly after receipt of his
or her notice of withdrawal and his or her option for the current period will be
automatically terminated. No further Contributions for the purchase of shares
will be made during the Offering Period.
(b) Upon termination of the participant's Continuous Status as
an Employee prior to the Exercise Date of the Offering Period for any reason,
including retirement or death, the Contributions credited to his or her account
will be returned to him or her or, in the case of his or her death, to the
person or
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persons entitled thereto under Section 14, and his or her option will be
automatically terminated.
(c) In the event an Employee fails to remain in Continuous
Status as an Employee of the Company for at least twenty (20) hours per week
during the Offering Period in which the employee is a participant, he or she
will be deemed to have elected to withdraw from the Plan and the Contributions
credited to his or her account will be returned to him or her and his or her
option terminated.
(d) A participant's withdrawal from an offering will not have
any effect upon his or her eligibility to participate in a succeeding offering
or in any similar plan which may hereafter be adopted by the Company.
11. INTEREST. No interest shall accrue on the Contributions of a
participant in the Plan.
12. STOCK.
(a) The maximum number of shares of the Company's Common Stock
which shall be made available for sale under the Plan shall be 50,000 shares,
subject to adjustment upon changes in capitalization of the Company as provided
in Section 18. If the total number of shares which would otherwise be subject
to options granted pursuant to Section 7(a) on the Offering Date of an Offering
Period exceeds the number of shares then available under the Plan (after
deduction of all shares for which options have been exercised or are then
outstanding), the Company shall make a pro rata allocation of the shares
remaining available for option grant in as uniform a manner as shall be
practicable and as it shall determine to be equitable. In such event, the
Company shall give written notice of such reduction of the number of shares
subject to the option to each Employee affected thereby and shall similarly
reduce the rate of Contributions, if necessary.
(b) The participant will have no interest or voting right in
shares covered by his or her option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will
be registered in the name of the participant or, if requested by the
participant, in the name of the participant and his or her spouse.
13. ADMINISTRATION. The Board, or a committee named by the Board,
shall supervise and administer the Plan and shall have full power and discretion
to adopt, amend and rescind any rules deemed desirable and appropriate for the
administration of the Plan and not inconsistent with the Plan, to construe and
interpret the Plan, and to make all other determinations necessary or advisable
for the administration of the Plan. The composition of the committee shall be
in accordance with the requirements to obtain or retain any available exemption
from the operation of Section 16(b) of the Exchange Act.
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14. DESIGNATION OF BENEFICIARY.
(a) A participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
participant's account under the Plan in the event of such participant's death
subsequent to the end of the Offering Period but prior to delivery to him or her
of such shares and cash. In addition, a participant may file a written
designation of a beneficiary who is to receive any cash from the participant's
account under the Plan in the event of such participant's death prior to the
Exercise Date of the Offering Period. If a participant is married and the
designated beneficiary is not the spouse, spousal consent shall be required for
such designation to be effective in a form prescribed by the Board.
(b) Such designation of beneficiary may be changed by the
participant (and his or her spouse, if any) at any time by written notice to the
Company. In the event of the death of a participant and in the absence of a
beneficiary validly designated under the Plan who is living at the time of such
participant's death, the Company shall deliver such shares and/or cash to the
executor or administrator of the estate of the participant, or if no such
executor or administrator has been appointed (to the knowledge of the Company),
the Company, in its discretion, may deliver such shares and/or cash to the
spouse or to any one or more dependents or relatives of the participant, or if
no spouse, dependent or relative is known to the Company, then to such other
person as the Company may designate.
15. TRANSFERABILITY. Neither Contributions credited to a
participant's account nor any options or rights with regard to the exercise of
options or to receive shares under the Plan may be assigned, transferred,
pledged or otherwise disposed of in any way (other than by will, the laws of
descent and distribution, or as provided in Section 14) by the participant. Any
such attempt at assignment, transfer, pledge or other disposition shall be
without effect, except that the Company may treat such act as an election to
withdraw funds in accordance with Section 10.
16. USE OF FUNDS. All Contributions received or held by the Company
under the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such Contributions.
17. REPORTS. Individual bookkeeping accounts will be maintained for
each participant in the Plan. Statements of account will be given to
participating Employees promptly following the Exercise Date, which statements
will set forth the amount of Contributions, the per share purchase price, the
number of shares purchased and the remaining cash balance, if any.
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18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
(a) ADJUSTMENT. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock covered by
each option under the Plan which has not yet been exercised and the number of
shares of Common Stock which have been authorized for issuance under the Plan
but have not yet been placed under option (collectively, the "Reserves"), as
well as the price per share of Common Stock covered by each option under the
Plan which has not yet been exercised, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of shares of Common Stock effected without receipt of consideration by
the Company; PROVIDED, HOWEVER, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of Common Stock subject to an option.
(b) CORPORATE TRANSACTIONS. In the event of the proposed
dissolution or liquidation of the Company, the Offering Period will terminate
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Board. In the event of a proposed sale of all or substantially
all of the assets of the Company, or the merger of the Company with or into
another corporation, each option under the Plan shall be assumed or an
equivalent option shall be substituted by such successor corporation or a parent
or subsidiary of such successor corporation, unless the Board determines, in the
exercise of its sole discretion and in lieu of such assumption or substitution,
to shorten the Offering Period then in progress by setting a new Exercise Date
(the "New Exercise Date"). If the Board shortens the Offering Period then in
progress in lieu of assumption or substitution in the event of a merger or sale
of assets, the Board shall notify each participant in writing, at least ten (10)
days prior to the New Exercise Date, that the Exercise Date for his or her
option has been changed to the New Exercise Date and that his or her option will
be exercised automatically on the New Exercise Date, unless prior to such date
he or she has withdrawn from the Offering Period as provided in Section 10. For
purposes of this paragraph, an option granted under the Plan shall be deemed to
be assumed if, following the sale of assets or merger, the option confers the
right to purchase, for each share of option stock subject to the option
immediately prior to the sale of assets or merger, the consideration (whether
stock, cash or other securities or property) received in the sale of assets or
merger by holders of Common Stock for each share of Common Stock held on the
effective date of the transaction (and if such holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares of Common Stock); PROVIDED, HOWEVER, that if
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such consideration received in the sale of assets or merger was not solely
common stock of the successor corporation or its parent (as defined in
Section 424(e) of the Code), the Board may, with the consent of the successor
corporation and the participant, provide for the consideration to be received
upon exercise of the option to be solely common stock of the successor
corporation or its parent equal in fair market value of the per share
consideration received by holders of Common Stock in the sale of assets or
merger.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the price
per share of Common Stock covered by each outstanding option, in the event that
the Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or reductions of shares of its outstanding Common
Stock, and in the event of the Company being consolidated with or merged into
any other corporation.
19. AMENDMENT OR TERMINATION.
(a) The Board of Directors of the Company may at any time
terminate or amend the Plan. Except as provided in Section 18, no such
termination shall affect options previously granted, nor shall an amendment make
any change in an outstanding option which adversely affects the rights of the
optionee. In addition, to the extent necessary to comply with Rule 16b-3 under
the Exchange Act, or under Section 423 of the Code (or any successor rule or
provision or any applicable law or regulation), the Company shall obtain
stockholder approval in such a manner and to such a degree as so required.
(b) Without stockholder consent and without regard to whether
any participant rights may be considered to have been adversely affected, the
Board (or its committee) shall be entitled to change the Offering Periods, limit
the frequency and/or number of changes in the amount withheld during an Offering
Period, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, permit payroll withholding in excess of the
amount designated by a participant in order to adjust for delays or mistakes in
the Company's processing of properly completed withholding elections, establish
reasonable waiting and adjustment periods and/or accounting and crediting
procedures to ensure that amounts applied toward the purchase of Common Stock
for each participant properly correspond with amounts withheld from the
participant's Compensation, and establish such other limitations or procedures
as the Board (or its committee) determines in its sole discretion advisable
which are consistent with the Plan. In addition, the Board (or its committee)
shall have the right to designate from time to time the Subsidiaries where
employees may be eligible to participate in the Plan and such designations shall
not constitute an amendment to the Plan requiring stockholder approval in
accordance with Treasury Regulations Section 1.423-2(c)(4).
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20. STOCKHOLDER APPROVAL. Continuance of the Plan shall be subject
to approval by the stockholders of the Company within twelve (12) months before
or after the Plan is adopted by the Board. Such stockholder approval shall be
obtained in the manner and to the extent required under applicable federal and
state law.
21. NOTICES. All notices or other communications by a participant to
the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for that purpose.
22. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
with respect to an option unless the exercise of such option and the issuance
and delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, any applicable state
securities laws, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the shares may then be listed.
As a condition to the exercise of an option, the Company may
require the person exercising such option to represent and warrant at the time
of any such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law.
23. TERM OF PLAN; EFFECTIVE DATE. The Plan shall become effective
upon the earlier to occur of its adoption by the Board of Directors or its
approval by the stockholders of the Company. It shall continue in effect for a
term of ten (10) years unless sooner terminated under Section 19.
24. ADDITIONAL RESTRICTIONS OF RULE 16b-3. The terms and conditions
of options granted hereunder to, and the purchase of shares by, persons subject
to Section 16 of the Exchange Act shall comply with the applicable provisions of
Rule 16b-3. This Plan shall be deemed to contain, and such options shall
contain, and the shares issued upon exercise thereof shall be subject to, such
additional conditions and restrictions as may be required by Rule 16b-3 to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
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EXHIBIT 5
[O'MELVENY & MYERS LLP LETTERHEAD]
June
25th
1 9 9 6
Pacific Greystone Corporation
6767 Forest Lawn Drive, Suite 300
Los Angeles, California 90068
Ladies and Gentlemen:
This opinion is rendered in connection with the filing by Pacific
Greystone Corporation, a Delaware corporation (the "Company"), of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended, covering 50,000 shares of Common Stock, $.01 par value (the
"Shares"), of the Company to be issued pursuant to the Pacific Greystone
Corporation 1996 Employee Stock Purchase Plan (the "Plan").
We have examined such appropriate records of the Company and other
documents as we have deemed pertinent as a basis for this opinion.
Based upon such examination and upon such matters of fact and law as
we have deemed relevant, we are of the opinion that when the Shares are issued
and paid for in accordance with any appropriate action or authorization by the
Board of Directors of the Company as required or contemplated under the Plan and
with the provisions of the Plan and relevant agreements duly authorized by and
completed in accordance with the terms of the Plan, the Shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
O'MELVENY & MYERS LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 and related Prospectus pertaining to the Pacific Greystone Corporation
1996 Employee Stock Purchase Plan of our report dated January 24, 1996 included
in the Pacific Greystone Corporation Annual Report on Form 10-K for the year
ended December 31, 1995.
ERNST & YOUNG LLP
Los Angeles, California
June 25, 1996
